COASTAL

LAW ENFORCEMENT

ACTION

NETWORK

Protecting wetlands the cradle of life

Wetlands Defense Fund protecting wetlands, the cradle of life 322 Culver Blvd., # 317 Playa del Rey, CA 90293 (310) 821-9045

HAND DELIVERED AT 6.14.12 MEETING OF CALIFORNIA COASTAL COMMISSION

Coastal Law Enforcement Action Network enforcing laws protecting the California· coast -1'8-1~Eu1verBlvd~,-Ste.Cc==~~"C- ---=="=cc~~=~-Playa del Rey, CA 90293 (310) 877-2435 June 14,2012

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The Honorable Mary Shallenberger, Chair, & Honorable Commissioners California Coastal Commission 45 Fremont Street, Suite 2000 San Francisco, CA 94105-2219

IMMEDIATE EMERGENCY Enforcement Request Permit (CDP) #4-07-098 Lagoon Restoration & Enhan~eIl!ent Plan '~_ _
Dear Commissioners:

"Malibu __ _. ~

We write to request IMMEDIATE ENFORCEMENT inspection at Malibu Lagoon re: the permit #4-07 -098 that provides permission under the California Coastal Act for the. Santa Monica Bay Restoration Foundation, California State Parks and the Resource Conservation District of the Santa Monica Mountains to proceed with-what is referred to in the record as the "Malibu Lagoon Restoration & Enhancement Plan." There are numerous permit compliance problems which we believe should cause the Commission to want to place this project on hold and convene a public hearing to determine the appropriate remedies for these permit compliance problems. As well, the permit holder is proceeding with work in spite of an incomplete and unapproved dewatering plan and an incomplete and unapproved public access plan.

Malibu Lagoon - CCC permit IMMEDIATE Wetlands DefenseFund, CLEAN June 14,2012 Page 2

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CONDITION

COMPLIANCE

PROBLEMS:

The California Coastal Commission, as we have witnessed its work over the past 20 years, takes great pains in compiling, approving and requiring compliance with conditions that staff and commissioners deem to be protective of coastal resources. I. Public Access Program On page 26 of the staff report that the Commission approved in October, 2010, the following condition was outlined entitled "Final Public Access Program":

A Prior to commencement of development, [emphasis in original document] the applicant shall submit, for the review and approval of the Executive Director, a Final Public Access Program that _ ..~~=_=_c~descrihes, the method;;~o(induding=~igp.~,£encillg,=FosJ:igg=9f _e.CJJ.rity~g_lJ~ds,_eJ:.C_.)_b.y~which s .safe~ public access to or around construction areas and/or staging areas shall be maintained during all project operations. [emphasis added] The plan shall also include signs directing the public to alternative parking areas for the duration of construction and staging. Where public paths will be closed during active operations, a person(s) shall be on-site to detour traffic or adequate fencing and signage shall be used. The applicant shall maintain public access pursuant to the approved version of the report. Any proposed changes to the approved program shall be reported to the Executive Director. No change to the program shall occur without a Commission-approved amendment to the permit unless the Executive Director determines that no such amendment is required. B. Where use of public parking spaces is unavoidable, the minimum number of public parking spaces (on and off-street) that are required at each receiver site for the staging of equipmemnt, machinery _' .~~c.an<Lemplo¥ee~pa:drillg-shalLbe-used~At_each--site,_the-llumber of-public parking-spaces utilized__ shall be the minimum necessary to implement the project. C. The applicant shall post each construction site with a notice indicating the expected dates of construction and/or trail or public access closures (if temporarily necessary.)

Of the excerpt detailed above, the following are violations of compliance terms: "Development" officially began on June 4, two days before an "initial" plan entitled "Site Access & Staging Plan Before Construction of Dike" was submitted (stamped as received by the South Central Coast District in Ventura on June 6, 2012.) This plan includes a description of it: "Site access Before Contruction of Dike, After the Construction of Dike Public Access to the Beach will be From Top of the Dike Per Separate Plan." Where IS that separate plan? It is not in the Coastal Commission file as of this week. If there is a separate plan not yet completed, then a "Final Public Access Program" has not yet been completed, and "development" - which has been EXTENSIVE this week, including wholesale destruction of ACRES of native ESHA habitat - was done illegally and without a valid permit.

Malibu Lagoon - CCC;permit IMMEDIATE Wetlands DefenseFund, aEAN June 14,2012 Page 3

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. In addition, the following condition terms were not and have not been met: • there are no signs directing the public to alternative public parking, as is required in the above excerpted conditions that were approved by the Commission. • The applicant shall post each construction site with a notice indicating the expected dates of construction and! or trail or public access closures (if temporarily necessary.) As is stated above: The applicant shall maintain public access pursuant to the approved version of the report. Any proposed changes to the approved program shall be reported to the Executive Director. No change to the program shall occur without a Commission-approved amendment to the permit unless the Executive Director determines that no such
.. - ... _____am~_n_dm_e_n.1.is_Leguired. .._=~~~ .~_..
c_· ._ ... c_._ .__ ..__. __ ._.

In addition, there are several other public access issues that need to be addressed in whatever final public access program is approved (which it does not appear has been finalized, due to the "separate plan" involving the dike access not being available to the public or in coastal commission files.) A. At no time previous to the recent week has the public understood or been informed, nor was the Coastal Commission itself informed that public access to Surf rider Beach's 3rd point would be atop a sand-bag constructed dike that has not been engineered as of yet. Concerns re: ADA compliance, wheelchair accessibility, stroller accessibility and other safety concerns have not been vetted nor addressed. B. Currently - this week - public access is ONLY available sporadically along the ........... ~.~~~.~".~~_pcerimeteLaccess.J:Qad_-=-_asthe.bridges.trail.has.been.shut __ off-completely frompublic.access, and heavy machinery is using the perimeter access path for habitat removal purposes. C. The PIPE which is going to be moving water from the dewatering operation to the ocean will be directly blocking the only emergency access available to lifeguards and as a secondary emergency access from the Colony residential homes. Craig Sap of State Parks informed us that the emergency lifeguard access - since the perimeter trail will be unavailable at times - is via this gate, yet the dewatering pipe will be blocking such vehicular access. Given the continued reassurances by project proponents that the "Malibu Lagoon Restoration & Enhancement Plan" that public access WOULD NOT BE IMPEDED, it is shocking and completely unacceptable that public access provisions to an area that is one of southern California's most popular beach destinations - in the height of summer tourism season - is being treated so cavalierly by the state agencies that are carrying out this plan. Those who participated in the October, 2010, hearing on this issue are convinced that this permit would never have been granted had such egregious blocking of public access from this important coastal region during heavy summer use were known and understood at the time.

Malibu Lagoon - CCC permit IMMEDIATE Wetlands Difense Fund, CLEAN June 14,2012 Page 4

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II. Final Dewatering Plan On page 15 of the staff report that the Commission approved in October, 2010, the following condition was outlined entitled "Final Dewatering Plan":

Prior to issuance of the coastal development permit, [emphasis in original document} the applicant shall submit, for the review and approval of the Executive Director, a Final Revised Dewatering Plan. A. The Final Dewatering Plan shall delete all references to a one-time mechanical breach of the lagoon [emphasis added - in other words, it was unacceptable to the Coastal Commission and its staff that a breach of the lagoon during Tidewater Goby breeding season would occur, in spite of the desires of the project managers to have such a scenario, which would make the job easier if not possible}, and
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sensitive aquatic species dewatering protection plan including the following requirements: The applicant shall ... i.) The qualified biologist or environmental resource specialist ...

ii.)

... _.~_.~ . ·-~~""~~_.~~~_~~~-.--

The qualified biologist or environmental resource specialist and a crew working under his/her direction shall clear all fish, including tidewater gobies and southern steelhead, from the area to be dewatered prior to construction. The capture, handling, exclusion, and relocation activities identified by the qualified biologist will be completed no earlier than 48 hours before __ ._c~_construction_begins_tQ.-minimize.the.probability list.ed-·· .that species will recolonize the affected areas. [emphasis added.]

The applicant has already begun fish trapping and "moving" - on Tuesday June 12,2012, and maybe before that date, but we have photo documentation and eye witness observations of that activity on June 12, 2012, yet the dewatering plan that would allow the "construction" in the lagoon channels is not yet approved and not anticipated to occur until at least next week, and possibly beyond that time. Therefore, the provision that states that the fish trapping team should not capture, handle, exclude or relocate the Tidewater Goby and other fish earlier than 48 hours before construction begins has been violated. The exclusion of fish from certain areas began immediately on June 11 and June 12 when plastic curtains were installed (to prevent tidal waters from entering the western arms of the channel). This activity only was made possible by the illegal- and mysterious? - breaching of the sandbar had happened in the early morning of Sunday, June 10, 2012. As you might be aware, the permit approval was VERY clear that no mechanical breaching of the sand bar to the lagoon was approved. Sometime between 12 midnight of J une 9 and 5:30 am on June 10, the sand bar was manually breached - illegally - by unknown individuals.

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Malibu Lagoon - CCC permit IMMEDIAIE Wetlands DefenseFund, CLEAN June 14, 2012 PageS

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In addition, the following condition terms may not have been met:

III. Herbicide Use
Following is the language from the permit on this topic: 9. Herbicide Use No herbicides shall be used during the proposed restoration project or during subsequent maintenance of revegetation plantings for the life of the project. Observers of the Malibu Lagoon area have witnessed and reported to us the use of herbicides on mustard plants in the project area. Please investigate this claim of a serious violation of the terms of the permit conditions .
.... c-cc"While_Qill Qwn iny~ga~g_J}-~jl,x-~-.Ql;:tgQiRg,.-an-ditis possible there are otherviolation§'_Qf the];)epniL

__ conditions for the Malibu Lagoon project, we are most concerned that these very important issues related to public access and dewatering, which is directly related to the endangered Tidewater Goby and its breeding season, have not been complied with according to the terms of the permit that the Coastal Commission granted.

ENDANGERED

SPECIES RISKS HIGHLIGHTED:

.. . ... . _

In addition to these issues described above, on May 30, 2012, a 60-day notice letter was sent to the United States Secretary of the Interior, the Pentagon's chief of the Army Corps of Engineers, the Director of the US Fish & Wildlife Service, the Coastal Commission's Charles Lester and other relevant authorities, as required under the federal Endangered Species Act. This letter outlines violations of the Clean Water Act and the Endangered Species Act, which as agents of the State of California, the Coastal Commission is .. alSq.X·_e4uit~.(ito_uphQld-.(see.-attached.letter.) ---~.. -~-We continue to believe that these violations are ongoing and have likely been exacerbated since the letter was sent, especially since the sand bar at the lagoon was artificially breached, conveniently to the project managers and contractors who were just a few days earlier heard by members of the concerned public to be lamenting and wondering aloud how they were going to do the work they wanted to do with the lagoon so :full of water (as is its natural condition during closed sand bar conditions at this time of year and is necessary for the successful and optimum breeding conditions for the endangered Tidewater Goby.) Please direct your enforcement staff to immediately go to Malibu Lagoon today or tomorrow at the latest to inspect the site and to ask questions of those who are carrying out the work there, including, but not limited to inquiries to Ms. Rosi Dagit, who has been charged with endangered species removal and care for the project. Please ask for solid documentation and demand answers to questions about the number of Tidewater Goby fish and California Killifish and other species of Gobies that were harmed in any way (including having breeding cycle disruption) during the lagoon breaching and the subsequent fish catching that she and her staff have been carrying out. (Fin damage, lateral line damage, snout damage and tail damage all need to be documented.)

Malibu Lagoon - CCC permit IMMEDIATE . Wetlands DefenseFund, aEAN June 14,2012 Page 6

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The US Fish & Wildlife Service will be grateful to know of the results of your enforcement staff's inspection, as the Endangered Species Act and the Biological Opinion that USF&WS issued include "take" provisions that not only include death to individuals of the Tidewater Goby species, but also any harm or injury that may have occurred. The USF&WS may require re-initiation of consultation based on this information. In addition, we remind the Commission of its own duty to uphold protections for endangered species.

Sincerely,

- Marcia Hanscom Executive Director
-···"WETLA:N-DS~DEFENSE~Fl:JND .

----€9:ASr.A:J7I*W=ENF0ReE-MBN'I'-c-------ACTION NETWORK (CLEAN)

Robert van de Hoek President & Wildlife Biologist

Protecting wetlands ~ the cradle 322 Culver Blvd., Ste. 317 Playa del Rey, CA 90293 (310) 821-9045

of life

181 Culver Blvd.,Ste. C Playa del Rey, CA 90293 (310) 877-2435

cc: The Law Offices of James Birkelund

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